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December 25, 2015 Volume 9 ( Issue 24 Zoning Bulletin
<br />hearing on the proposed zoning ordinance or amendment to a zoning
<br />ordinance . .."
<br />In response to the Defendants' claim, the People (i.e., the criminal prosecu-
<br />tors) argued that: (1) Proposition D was a nuisance ordinance, and not a zon-
<br />ing ordinance, and therefore a hearing before enactment of a zoning ordinance
<br />was not applicable; (2) even if Proposition D was a zoning ordinance, because
<br />it was enacted by voters rather than the City Council, a public hearing was
<br />not required under Gov. Code § 65804; and (3) even if a public hearing was
<br />required, Proposition D could not now be invalidated because its validity was
<br />not challenged within 90 days of its effective date.
<br />DECISION: Judgment of superior court affirmed.
<br />The Appellate Division, Superior court, Los Angeles County, upheld the
<br />Defendants' conviction. In so holding, the Appellate Division specifically
<br />determined that: (1) LAMC § 45.19.6.2—which restricted medical marijuana
<br />businesses—was a zoning ordinance; and (2) enactment of LAMC § 45.19.6.2
<br />did not require a public hearing before the City planning commission and
<br />therefore was valid.
<br />In rejecting the People's argument that Proposition D was a nuisance
<br />ordinance and not a zoning ordinance, the court found that that "an ordinance
<br />that makes it a misdemeanor to 'own, establish, operate, use, or permit the
<br />establishment or operation of a [MMB] . . ..' (LAMC, § 45.19.6.2, subd. A)
<br />must also have the effect of `[r]egulat[ing] the use of buildings, structures,
<br />and land' "—and therefore be a zoning ordinance. Similarly, the court found
<br />that the provision of limited immunity from prosecution for violating LAMC
<br />§ 45.19.6.2 by meeting a number of restrictions—including, for example, not
<br />being "located within a 1,000-foot radius of a school,-or within a 600-foot
<br />radius of a public park, public library, religious institution, child care facility,
<br />youth center, alcoholism, drug abuse recovery or treatment facility, or other
<br />[MMB]" (LAMC, § 45.19.6.3, subd. O)—must also be understood to
<br />"[r]egulate the use of buildings, structures, and land," and thus be a zoning
<br />ordinance.
<br />The court further found that because Proposition D was enacted by voters
<br />rather than the City Council, Gov. Code § s 65804 and 65854 did not apply,
<br />and a hearing before the planning commission was not required. The court
<br />noted that in drafting the notice and hearing provisions of the zoning law, the
<br />Legislature had a view to "ordinances adopted by vote of the city council."
<br />Those Government Code notice and hearing requirements for proposed zon-
<br />ing ordinances were intended by the Legislature "to insure unifouuity of, and
<br />public access to, zoning and planning hearings while maintaining the
<br />maximum control of cities and counties over zoning matters," said the court.
<br />"As, such, with respect to insuring public access, the requirements may be
<br />seen to address due process concerns," explained the court.
<br />Here, the court found that the removal of the ordinance from the City
<br />Council to the electorate rendered the planning commission hearing compo-
<br />nent of the Government Code inapplicable while simultaneously protecting
<br />the rights of the citizenry to: (a) notice of the proposed ordinance, and (b) an
<br />opportunity to participate in the democratic process of passing the ordinance.
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<br />© 2015 Thomson Reuters
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